A day in the life of an “Attorney of the Day”

Demonstration for reform in front of San Francisco Immigration Court (2014).

Lezak Shallat

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Lawyer Ilyce Shugall spends most days working in East Palo Alto at community legal services non-profit. But about once a month, she volunteers in San Francisco as an Attorney of the Day.

The program’s the only one of its kind in the country — Mayor Ed Lee recently announced another $1.8 million to continue it — and it addresses a need that most people don’t realize exists: immigrants facing deportation have no right to a lawyer, not even when they’re children.

On those days, Shugall gets to immigration court at 100 Montgomery extra-early. But there’s really not much she can do in advance for the dozen or so clients she’ll represent that morning. She’s never met them before.

Shugall is one of about 70 Attorneys of the Day. They do a kind of “stop-gap” legal aid: over the course of a day, they speed-walk immigrants through their initial court hearings. The idea is to buy time in the hopes that people without lawyers will have time to find representation before they have to plead their cases.

“On a typical day, there's usually a lot of young children running around, crawling around the floors, sometimes crying,” Shugall says. “Everyone is also very nervous.”

Not enough lawyers, and no right to have one

There’s no pounding gavel when Judge Dana Leigh Marks enters her courtroom. People are coming in and out, and there’s no recording allowed. She opens the session by asking, in English and Spanish, for anyone without a lawyer to raise their hand. About 10 people do. She tells them to go talk to the volunteer attorney, who is waiting at the front of the court.

A few weeks ago, a woman who asked that we call her Esperanza was one of those who did.

“I was afraid, because you hear so many things,” she says.

Esperanza fled El Salvador six months ago. She found housing here and a school for her son. But with little money and no work permit, she couldn’t find a lawyer to help her apply for asylum in the U.S.

“Almost all the law firms I called — the low cost ones, the non-profits, the private ones — said they’d put me on the waiting list,” she explains, “because there are so many cases. And so far, not a single one has called me back.”

The day Esperanza came to court, an Attorney of the Day was there. And she was in luck: after the hearing, that attorney took her on as a client.

But that’s not what usually happens. And not having a lawyer has real consequences: immigrants who have lawyers are 14times more likely to win their cases than those who go it alone.

“Immigration law is repeatedly compared in its complexity to tax law,” says Judge Marks. And, she adds, “there is no equivalent to Turbo Tax in immigration law.”

But remember: these immigrants don’t have a right to a lawyer.

“Immigration proceedings are considered civil proceedings,” says lawyer Avantika Shastri, coordinator the Attorney of the Day program. “There is no Constitutional right to counsel like there is in criminal proceedings. Even though the consequences of immigration court proceedings can be deportation.”

“Better than nothing”

The Bar Association of San Francisco launched the Attorney of the Day program 25 years ago. Today, it’s run by a collaborative that focuses on representing the record number of asylum seekers arriving at the U.S. southern border.

Starting in summer 2014, news began to surface of the unprecedented influx of unaccompanied children and families from Central America arriving at the US southern border. In response to the crisis, the US government created special court proceedings created special court proceedings for these migrants called “surge” dockets. Also known as “rocket” dockets, these expedite the immigrants’ cases. But they also leave them little time to find a lawyer.

That’s where the Attorneys of the Day step in.

A few weeks after my visit to Judge Marks’ courtroom, I meet another Attorney of the Day. He has about 30 minutes to interview half a dozen women, with twice as many children, some in diapers. He’s pressed for time, so breaking protocol, he asks me to help translate names and addresses that must be verified before he can begin. Most lawyers speak Spanish, and they usually work in pairs. But there aren’t always enough available. So today, this lawyer’s on his own.

“I call it like triage at a MASH unit,” says Judge Marks. “There are all these cases that need emergency medical attention, but you have to decide which one needs it first.” She is speaking not as a Department of Justice official, but as President of the National Association of Immigration Judges, the judges’ union.

“The attorneys of the day are doing us a tremendous service, regardless of whether it's perfect or not,” she says. “It certainly is better than nothing.”

Earning trust

Given the haste, the fear, and the high stakes, how does an attorney of the day win the trust of a client for the day?

“I always explain who I am, who I work for, and who I do not work for,” says Ilyce Shugall. “I make it really clear that I don't work for the court. I don’t work for the Department of Homeland Security, or any other branch of the federal government.”

But building rapport takes time, and a rushed consultation offered for free inside a courtroom does not inspire everyone to open up.

“There have definitely been people that I've met with who I have a strong sense that that person went through something really, really horrible that he or she is not telling me,” says Shugall. “Almost all the families I have met with intend to apply for asylum. They are all fleeing some sort of severe violence, and that is why they are coming.”

The San Francisco immigration court handles cases from all over Northern California. In the past two years, close to 9,000 people have come through its surge dockets. A significant number are unaccompanied children. Some are so young they can barely talk.

Toddlers on the stand

Civil rights groups are suing the government for violating these children’s rights by not providing them with lawyers. In March, their arguments spilled out of the courtroom and onto YouTube. Claims by a judge that he has trained 3-year-olds to represent themselves sparked a rash of homemade videos by lawyers putting their own toddlers on the stand. In one video, a lawyer asks her young daughter if she’s afraid to return to her home country. Yes, the girl replies. The mother then asks which country she’d like to be removed to, if she can’t stay in the U.S. “Pizza,” answers the toddler.

A bill introduced in Congress last February would change this scenario. It’s called the “Fair Day in Court for Kids” Act and San Jose Congresswoman Zoe Lofgren is a co-sponsor.

“Let’s look at this scene,” say Lofgren, “where you’ve got the immigration judge, the trained lawyer for the government. And then you've got an 8-year-old. What is it about that picture that makes you think you’re going to have due process?”

Lofgren sits on the House Judiciary Committee and is a former immigration attorney. She holds little hope that the bill will advance, but she believes it’s important to raise the issue. “What we're saying,” she notes, “is that everybody in America is entitled to due process of law.”

So as the bill wends its way through Congress, in San Francisco at least, a small band of attorneys is helping immigrant families and children have at least one fair day in court – for free.